Mental Health Bill [ Lords ] (Sixth sitting) Debate
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Luke Evans
Main Page: Luke Evans (Conservative - Hinckley and Bosworth)Department Debates - View all Luke Evans's debates with the Department of Health and Social Care
Mental Health Bill [ Lords ] (Sixth sitting)
Luke Evans ExcerptsTuesday 17th June 2025
(1 day, 15 hours ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2025 - (17 Jun 2025)
Stephen Kinnock
I can assure my hon. Friend on that. We have safeguards in place both to ensure that the selection is appropriate in the first place and that, if there are behaviours that indicate that the person is not right for the task, they will be removed and their powers taken away.
Dr Luke Evans (Hinckley and Bosworth) (Con)
Can the Minister clarify where these powers are and what they look like? For example, if a 15-year-old decides to appoint someone who is 23—maybe a boyfriend, maybe not—the problem is that once they make that nomination, we are waiting for something to happen. The idea behind the clauses we have been debating, and the use of exceptional circumstances to try to solve this problem, is to ensure that we prevent any problem from happening in the first place. That is the bit I am not clear on. I thought that Government amendments 40 and 41 were possibly intended to address that point, but my worry is that once the person is chosen, we do not know how they will behave. The whole idea is to give parental responsibility first. Could the Minister address where this is in the Bill, or what it looks like in the code? This is the critical bit to get right for children.
Stephen Kinnock
With all due respect to the hon. Gentleman, I am not going to spend time shuffling my papers around. If he cares to look at schedule 2, I think he will find it there.
Government amendments 40 and 41 have been tabled because we believe that it is not necessary to specify in legislation which person the parental responsibility the approved mental health professional must appoint as nominated person for an under-16-year-old. We have committed to clarify this in the code of practice. We have committed to establishing an expert taskforce to support the development of a statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process.
The fourth question was whether we need parental responsibility by default. The current nearest relative provision assigns an automatic relative according to a hierarchical list, which does not reflect modern family structures. For instance, step-parents and parents who live abroad are not included. That can mean that children and young people may have a nearest relative who can make decisions about their care but who may not know the child well or engage with the role, or who could even be a risk to them. Without formal care proceedings, the child would be left to be represented by a relative who will not act in their best interests.
Fifthly, questions were raised about how to ensure that young patients are not isolated from family support if needed. Engagement with children and young people suggests that they are most likely to appoint their parent as a nominated person. If they appoint someone who is not their parent, then parents could still be involved in their care and treatment where appropriate. Safeguards are in place to allow for the overruling and displacement of the nominated person if they are behaving in a way that is not in the child or young person’s best interests.
Similarly, where a child is under a care order and parental responsibility sits primarily with the local authority, the local authority will retain its parental responsibility for the child even if the child chooses a nominated person who is not the local authority. The code of practice will provide guidance on how practitioners should include those with parental responsibility and care in key processes and decisions.
Sixthly, in cases where there are safeguarding concerns, what safeguards exist to ensure that the nominated person acts in the best interests of the child? The witness will determine whether the child’s nomination is suitable. Clinicians will also have the power to overrule decisions made by a nominated person if they think there is a danger to the patient or to others. The patient, an approved mental health professional, parents and anyone with an interest in the child’s welfare can apply to the court to displace the nominated person if they think they are behaving in a way that is not in the child’s best interests.
Finally, there was a question about how we will ensure that there is no coercion, including in the example involving an older partner. We will provide guidance to the witness on how to check that no coercion has taken place, as well as wider suitability criteria. A nominated person cannot be appointed if coercion or undue pressure has taken place. We intend to state in the code, subject to consultation, that an advocate should be involved early on to provide support to the child or young person throughout the nomination process. Advocates could work with witnesses to ensure that they have the relevant information about the child to make an informed appointment.
I hope that hon. Members are satisfied with those answers and will not press their amendments. I commend Government amendments 40 and 41, clauses 24 to 28 and schedule 2 to the Committee.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Schedule 2
Nominated persons
Amendment proposed: 54, in schedule 2, page 77, line 21, at end insert—
“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”—(Dr Evans.)
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Dr Evans
This morning, we touched on amendment 49, so I will not repeat my remarks. I will simply ask a pithy question of the hon. Member for Winchester. He rightly talked about the incredible work that his local citizens advice bureau carries out. How will the amendment blur the lines between social workers, caseworkers and the independent advocates who are already doing this work? How does he perceive that working? I worry about the complexity that it would create. I would be grateful if the hon. Member addressed that point.
Stephen Kinnock
I am grateful to the hon. Member for Winchester for bringing this issue before the Committee. The intention of his amendment is to extend the support offered by independent mental health advocates
“to cover social and financial stressors and support for family carers and other members of the household when the patient is discharged.”
It would amend paragraph 18 of schedule 2, which deals with amendments relating to nominated persons. It should more properly be inserted into schedule 3, which deals with independent mental health advocates.
The Bill will already extend the support that advocates can provide to help patients to be involved in decisions about their care and treatment, to be able to make a complaint and to be provided with information about other available services. Those other services could include support following discharge from statutory or voluntary organisations, which may cover social and financial issues, and help to support carers. Those organisations would be better placed to support patients with these specific needs, rather than independent mental health advocates, whose skillset is specific to supporting patients to understand their rights under the Mental Health Act and participate in decisions about their care and treatment. We will consult on guidance in the code of practice to help independent mental health advocates to understand their extended role.
In addition to policy regarding independent mental health advocacy, advance choice documents give individuals the chance to give instructions about practical aspects of their life. Examples of such aspects include domestic, financial or caring responsibilities, such as children or pets. This provision allows the individual to be looked after when unwell and aims to ease additional anxieties. For those reasons, I ask the hon. Member for Winchester to withdraw his amendment.
Gregory Stafford
I have some brief questions for the Minister about this important clause, which has serious implications for patient liberty and for public protection. We must ensure that decisions are clinically and legally sound. First, how will the proposed changes to initial and renewal detention periods help conditions and services and manage public risk more effectively, particularly in forensic or high-risk cases? Secondly, do longer detention periods after revocation of a community treatment order reflect a higher perceived risk, and if so, is there clear clinical evidence supporting that extension to six months? Thirdly, are we confident that the new timelines strike the right balance between protecting the public and ensuring patients are not detained longer than necessary? Finally, and as an adjunct to that, what other considerations are there in the clause or the Bill to keep the public safe and to make sure that decisions are correct in the context of clause 29?
Dr Evans
Clause 29 addresses the length and renewal of detention periods under the Mental Health Act. I begin by acknowledging the important step that this clause represents in shifting towards a more rights-based, patient-centred model, as enshrined in the Bill.
Clause 29 would shorten the initial period of detention for treatment under section 3 of the Mental Health Act from six months to three months. Subsequent renewal periods are, likewise, reduced from six months to three months and then from one year to six months. This is clearly informed by the principle of least restriction, as is rightly highlighted in the explanatory notes in paragraph 212.
On that basis, we welcome the direction of travel, but, while we agree with the principle of moving towards shorter, more proportionate detention periods, we have questions and concerns about implementation, consistency and safeguards, which I hope the Minister will address.
First, will shorter periods lead to better outcomes, or just more paperwork? The goal here is to ensure that detention is not allowed to drift and that patients are not held in hospital for longer than is necessary without rigorous justification. However, the clause still allows for indefinite renewal in increments, once those shorter initial periods expire. Can the Minister assure us that these changes will result in more meaningful reviews and not just more frequent rubber-stamping of detention? It would be helpful to understand whether the Government have assessed the clinical capacity, particularly among responsible clinicians and approved mental health professionals, to conduct these reviews with real rigour. If not resourced properly, we risk replacing one form of inertia with another.
Secondly, what safeguards exist against the resetting of detention periods on transfer? I am by no means a legal expert, so forgive me if I have completely misinterpreted this, and I bow to the legal expertise of the Minister, the Government and, most importantly, to able staff in the Box. However, clause 29(2) introduces into section 19 of the Mental Health Act new subsection (2A), which provides that if a guardianship patient is transferred to hospital, they will be treated as if they had been admitted on the day of transfer. In practical terms, does that not reset the detention clock?
To my eyes, this concept of resetting the detention clock appears most clearly in subsections (2) and 29(5)(d) of clause 29, where a patient who is transferred from guardianship to hospital, or who has their community treatment order revoked, is treated as if they had been newly admitted to hospital on that day. This effectively resets the start date of the detention period. Clause 29(2), which will insert proposed new section 19(2A) into the Mental Health Act, states:
“But, in the case of a patient falling within subsection (2)(d), section 20 has effect as if the patient has been admitted to hospital in pursuance of an application for admission for treatment on the day on which the patient is transferred.”
New paragraph 5B of schedule 1 to the Mental Health Act states that the modifications
“apply in relation to a patient transferred from guardianship to a hospital in pursuance of regulations made under section 19…In section 20(1)(a)…for “admitted”…there is to be substituted “transferred”.
In new paragraphs 5C and 5D of that schedule, the same resetting principle applies to patients whose CTOs are revoked, with renewal detention starting from the date of revocation, not from their original hospital admission or order.
In practice, this could mean that if a patient is placed under guardianship on 1 January and transferred to hospital on 1 April under section 19(2)(d) of the Mental Health Act, then under proposed new section 19(2A), they would be treated as if they had been newly admitted on 1 April. Therefore, even though they have been under compulsion since 1 January, the new three-month detention clock begins on 1 April. Likewise, a patient under a community treatment order that was issued on 1 February and revoked on 1 August will, under paragraph 5D, start a new in-patient detention period on 1 August, not 1 February.
On one hand, that makes sense. We do not want people whose state is fluctuating to be released, or simply to time out. On the other hand, if we are looking purely from the patient’s perspective, as the legislation asks us to do, with regard to the principles in clause 1, that could be a problem. Will the Minister clarify how many times such a reset could occur for a single individual? Is there any form of oversight, review or reporting requirement where this happens? That mechanism might be necessary in some clinical contexts, but without safeguards it could become a back door to prolonging detention, which is something that the clause seeks to reduce. Is there some kind of register or mandatory recording of these incidents to spot repeat patterns?
Thirdly, another issue that needs addressing is the creation of possible complexity. Paragraphs 218 and 219 of the explanatory notes set out a separate but equally important issue. Clause 29’s welcome shortening of detention periods—from three months to start with, then three months, then six months, then annual reviews—is not applied evenly to patient groups. Who gets the shorter periods? Most civil patients detained under part II and some patients on revoked community treatment orders. Who does not get them? Patients detained by a hospital order from a court, if their CTO is revoked within six months of the order, as in paragraph 218. And, of course, restricted patients—typically those involved in more serious offences.
Stephen Kinnock
The aim of the clause is to ensure that a patient’s detention is reviewed sooner. The planned reforms will not change the fundamental power and purpose of the Act, which is to detain and treat people when they are so unwell that they become a risk to themselves or others. Where a patient continues to meet the criteria, their detention will be renewed.
Opposition Members have asked about extra paperwork and workload in general for both clinicians and tribunals. In the impact assessment that we published alongside the Bill, we set out the estimated costs and benefits of the reforms and the expected workforce requirements that are critical to our implementation planning. That includes consideration of the impact on clinicians of additional detention reviews, which we have calculated is estimated to be around four hours of additional workload by the clinician for each patient who is detained beyond three months.
On the clinical evidence for shortening the detention period, in the independent review we found that in 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing, which strongly suggests that some patients are being detained for longer than is necessary.
Stephen Kinnock
I did not catch the question to which the hon. Gentleman is referring. Could he repeat it, please?
Dr Evans
The issue is about resetting. As the legislation is written, it would suggest that because people are moving from one place to another, the clock resets. Clinically, that could make sense, but part of the problem is that every time the clock resets, so does the person’s detention. That is a key part. Fundamentally, in this clause we are trying to stop people being detained when they do not need to be. In fact, the Minister has just said that 17% of people were discharged before the tribunal could happen. The question is around specifying, when it comes to admission and transfer, that the clock resets. What safeguards do we have to make sure that we are counting the number of times it is reset, that it is clinically appropriate and, most importantly, that we are not substituting one way of dealing with this with a back-door way of creating a reset motion?
Natasha Irons (Croydon East) (Lab)
It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to speak in support of clauses 30 to 33. I echo many of the remarks of the gallant and learned hon. Member for Solihull West and Shirley, but I will try not to go over too much of the same ground.
These clauses seek to provide clarity and improvement in access to the tribunal process, both for patients detained under the Mental Health Act and for those on conditional discharge, and seek to implement key recommendations from the independent review. Section 66 of the Act is amended to extend the period in which a patient detained under section 2 can apply to the tribunal from 14 days to 21 days. Clause 30 also allows for auto-enrolment in a hearing, reducing that time from six months to three months. It clarifies that conditional discharge patients are included in this package, so they also have the right to have their treatment reviewed at a tribunal. Providing for auto-enrolment simplifies the system for people who, as the hon. Member mentioned, are perhaps not in the best position to make administrative decisions and fill in the paperwork to apply to a tribunal.
Although this framework and these changes are necessary to bring clarity and autonomy back into people’s healthcare, it would be good to hear from the Minister about how we will support patients throughout these processes as we learn about the different timelines. How will we ensure people can access this change in the system and understand what they are entitled to under this new provision?
Dr Evans
Clauses 30 to 33 deal with the tribunal access and automatic referrals of patients detained or conditionally discharged under the Mental Health Act. Let me begin, again, by welcoming these provisions, which seek to improve safeguards, ensure timely oversight, and extend the rights of individuals, particularly those under deprivation of liberty conditions in the community. These are serious matters of liberty and I acknowledge the Government’s intention to modernise and strengthen protection. Nevertheless, it is important that we look carefully at how the clauses operate in practice. I will take each in turn.
Clause 30, on tribunal application periods, will make important changes to when patients can apply for the tribunal. First, it will extend the time that patients detained under section 2 of the Act have to apply from 14 to 21 days. This is a welcome change. We know that the first few days in hospital are incredibly disorientating, so allowing patients a bit more time to seek legal advice is entirely sensible.
Secondly, the clause will reduce the period for patients detained under section 3 to apply from six months to three. I can understand the logic of that, given that clause 29 also shortens the initial detention period, but is there any reason for choosing that mark? Is there any evidence that the three-month window will still allow patients to have sufficient time and support to exercise their rights?
Thirdly, the clause will introduce new provisions for conditionally discharged restricted patients, setting out different application timeframes depending on whether the patient is subject to conditions amounting to deprivation of liberty. Those under the deprivation of liberty safeguards will be able to apply between six and 12 months after discharge and then every two years. For those not under such conditions, the window begins at 12 months. That reflects the impact of conditions on a person’s liberty, and I recognise that distinction, but can the Minister clarify how patients will be informed about which track they are on? That will be fundamental to exerting their rights. Will any guidance be issued to ensure consistency? Will patients have access to advocacy or legal advice at this point?
On clause 31, automatic tribunal referrals are a crucial safety net for those who for whatever reason do not exercise their right to apply. The clause introduces a new framework of relevant periods after which the hospital managers must refer, as we have heard. For section 2 patients, it will be three months. For section 3 and CTO patients it will be three months, then 12 months and every year thereafter. Significantly, the current three-year review period for many detained patients is reduced to one year.
The clause marks a substantial increase in oversight, which I support, but it also raises practical questions. Given that we have put these backstops in place, have the Government made any estimate of how many extra tribunals will be needed and how much extra work they will generate? The Minister was kind enough to say that there were four hours of clinical work involved in doing the plans, but I do not think we have yet heard how much work the Government estimate that the tribunals will take.
More importantly, what support is being provided to ensure that the tribunal system can meet that increased demand? I am particularly concerned that the benefits of these reforms may not be felt if backlogs or delays undermine the safeguards they are intended to deliver.
Gregory Stafford
Does my hon. Friend think that if there is a backlog, that could undermine patient rights or clinical progress in some way? How will the tribunal system be able to cope with that increased workload and meet its legal obligations to provide timely tribunals so that patients get the best care?
Dr Evans
That is a difficult balance to get right. I appreciate that the Government have said that the Bill will take 10 years to implement, but if these measures come into force from day one, we will start to see automatic referrals come through. There will be a lag as the transition happens, but my hon. Friend is absolutely right: we can foresee scenarios where patients who want to be referred into the tribunal are waiting in inappropriate care places, which may be to the detriment of their personal care and may actually make their recovery worse. He is right to highlight that question, which is why having a broad understanding of how many extra referrals are coming would be useful.
Clause 32 focuses on conditionally discharged restricted patients who are subject to deprivation of liberty conditions. It rightly ensures that those patients are brought within scope of automatic referral, first after 12 months and then every two years. Again, that is a positive step, ensuring that even those not detained in hospital will still have access to a review of their conditions. Crucially, the clause also gives the tribunals the power to vary or remove those DoL conditions.
Can the Minister say more about how that important power will be used? What criteria will the tribunals apply to assess whether a condition is genuinely necessary and proportionate? Will patients be legally represented in those hearings by default? Will another advocate be there, or will it be someone else in their place? Here, too, I would welcome some clarification from the Minister. I hope he will forgive my legal naivety, but my mother always said, “It’s better to ask a dumb question than stay dumb forever.”
The explanatory notes talk about DoL conditions. The current legal framework for authorising the deprivation of liberty for individuals who lack capacity is complex and in transition. Under the Mental Capacity Act 2005, deprivation of liberty safeguards have been the established mechanism since 2009 to ensure lawful deprivation of liberty in care settings. However, the Mental Capacity (Amendment) Act 2019 introduced liberty protection safeguards as modernising replacements, designed to simplify and broaden protections.
LPS are widely seen as an improvement to DoLS, because they extend safeguards to a wider range of settings, including hospitals and people’s own homes where deprivation of liberty might occur. They also streamline the assessment process, reducing bureaucratic delays and better reflecting person-centred decision making. The Law Commission and various stakeholder groups have supported LPS as a way to address the significant practical and legal challenges posed by DoLS, including the so-called DoLS backlog, where assessments have been delayed for many vulnerable individuals.
Despite that, I do not believe that LPS have yet been implemented, leaving DoLS still in force. I wonder if we are therefore creating ambiguity as we update the Mental Health Act through the Bill’s clauses, such as those addressing conditional discharge and deprivation of liberty, without clarity on how those will intersect with the forthcoming LPS framework that will be introduced under separate legislation. That raises important questions about the sequencing and co-ordination of legislation reform. How will the Government ensure coherence and avoid conflicting provisions when different statutes address overlapping issues at different times?
Given that context, have the Government abandoned the planned implementation of LPS, or do they remain committed to bringing them into force? If the implementation is still planned, will the Government provide a clear timeline for when LPS will replace DoLS? How do the Government intend to ensure that the provisions we are debating will align with or adapt to the introduction of LPS? What steps are being taken to ensure that vulnerable individuals and professionals who navigate this complex legal landscape will have clear, consistent safeguards and guidance through the transition? Clarification on those points is essential to avoid legal uncertainty and to ensure that the reforms provide coherent protection for those deprived of their liberties.
Clause 33 deals with patients who are not under DoLS conditions. It will ensure that even those who are under DoLS conditions, such as detained restricted patients or conditionally discharged patients with lesser restrictions, receive automatic tribunals. It will reduce the current three-year referral intervention for detained restricted patients to 12 months and introduce automatic referrals for non-DoL conditionality discharge patients after two years and then every four years. Again, that is a step forward, but four years feels like a long gap between reviews for those discharged with conditions that still significantly affect their daily lives. Will the Minister explain the thought behind the chosen timeframe? If a person’s condition changes, is there a mechanism to trigger an early referral outside the normal cycle?
The clauses show progress. They reflect a clear intention to strengthen patients’ rights, increase oversight and address historical injustices, particularly for those living under deprivation of liberty conditions in the community. But with complexity comes risk, and we need to ensure that patients understand their rights and the legal support available. The tribunal system must be properly resourced to uphold the safeguards that we place in the legislation.
Stephen Kinnock
I will try to answer some of the questions. On tribunal capacity, people who are conditionally discharged and those with restrictions that amount to a deprivation of liberty represent only a small fraction of tribunal business—well under 1% of all mental health tribunal cases. The modest increase in hearings is therefore expected to be absorbed within existing capacity, while delivering significant rights benefits to the individuals concerned. It is worth noting, too, that the mental health tribunal continues to perform strongly. Amazingly, it is one of the very few areas of our public services not to be left with a massive backlog by the previous Government. The open caseload has remained stable at approximately 3,700 cases for a decade, despite 31,226 appeals in 2024-25.
I was asked about LPS and replacing DoLS. The previous Government paused the implementation of the liberty protection safeguards; they decided to focus on other priorities. In the absence of LPS, the deprivation of liberty safeguards system will continue to apply. The Department has made it clear that all bodies with legal duties under the DoLS must continue to operate these important safeguards to ensure that the rights of people without the relevant mental capacity are protected.
Stephen Kinnock
We have made it clear that we are going to continue with DoLS. Basically, we have to look at whether replacing them with LPS will achieve the stated objectives of the exercise, and I am not entirely convinced about that. It is under review.
On supporting patients, the independent mental health advocate will ensure that patients are aware of their rights. Throughout the Bill we are ensuring that patients have support by moving to an opt-out model. Additionally, if a patient does not bring a case, they will be referred automatically to the tribunal if a specified period has passed. Patients will be supported in getting tribunal oversight, as the referrals are made by a hospital manager.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clauses 31 to 33 ordered to stand part of the Bill.
Clause 34
Discharge: process
Question proposed, That the clause stand part of the Bill.
Dr Evans
I rise to speak to clause 34, which inserts new consultation requirements into section 23 of the Mental Health Act 1983. The requirements relate to the discharge of individuals detained under parts II and III of the Act, as well as those subject to community treatment orders or guardianship.
Currently, under the Act, the responsible clinician has the power to discharge patients detained under sections 2 and 3, as well as unrestricted patients subject to a hospital order under part III, without any formal requirement to consult other professionals. This is already considered outdated practice in most clinical settings, where decisions are typically made within the multi-disciplinary team. However, that is not required by law. By contrast, discharge decisions for restricted patients remain with the Secretary of State for Justice or the mental health tribunal and are not affected by the clause.
Clause 34 seeks to change the current situation. It will insert proposed new subsections (2A) to (2C) into section 23 of the 1983 Act, placing a statutory consultation duty on responsible clinicians, local authorities and, in some cases, the patient’s nominated person. The aim, as outlined in the Government’s explanatory notes and by the Minister, is to formalise best practice and ensure that no discharge decision is made unilaterally without appropriate professional oversight. The Opposition welcome the intention behind the clause—strengthening safeguards, encouraging multidisciplinary collaboration and protecting patients from unsafe or premature discharges are all necessary and overdue steps—but we have a few questions about it that I hope the Minister will address.
First, proposed new subsection (2A) requires the responsible clinician to
“consult a person—
(i) who has been professionally concerned with the patient’s care or treatment, and
(ii) who belongs to a profession other than that to which the responsible clinician belongs”.
That is a sound principle, but there is an ambiguity in the phrase “has been professionally concerned”. Who do the Government have in mind? The Minister set out that it could be a nurse or a counsellor, but would it stretch as far as a GP or a practice nurse? Will there be a codifying list, either in statute or in the code of practice, so that we know who is expected to speak to that person? Does it require current involvement in the patient’s care? For example, could a professional who saw the patient only briefly many months ago qualify? If so, is that adequate to meet the clause’s intention? We would welcome clarification from the Minister on whether a definition of who and what an appropriate consultee looks like will be covered in guidance or regulations.
Secondly, I fully understand the good intent behind proposed new subsection (2B)(c), but as a good Opposition we should point out a possible unforeseen problem. It states that when the nominated person—that is, the person chosen by the patient to act in their interests—is making a discharge decision under guardianship, they
“must consult the responsible local social services authority.”
That raises both legal and practical questions. Is it appropriate to place a statutory duty on a layperson, who may be a relative, a friend or a carer with no formal training or professional support? What is the consequence if they fail to consult? Would their decision be invalid, or could it be legally challenged?
I know that the Government are trying to ensure that relatives and advocates are consulted, which is commendable. I am sure there will be no issue in the vast majority of cases, but there is a risk that the duty may unintentionally create legal uncertainty and administrative burdens for families. Has the Minister thought about whether it might be better framed as a duty on the local authority to advise or support the nominated person, rather than vice versa? I am sure we both agree on the motive and principle of shared decision making; it is simply a question of where to place the burden.
Thirdly, under proposed new subsection (2C), if someone is on a community treatment order, the responsible clinician and hospital managers must consult the community clinician before they discharge the person from that order. Again, that seems sensible, but what happens if there is no identified or available community clinician? As we have discussed, they are legally named, so could that requirement create a bottleneck to discharge? Will there be provision for proceeding with discharge if consultation is not practicable within a reasonable time? Without such a safeguard, there is a risk that patients remain subject to detention, such as conditions under a CTO, even when all parties agree that discharge is clinically appropriate.
Furthermore, the clause does not appear to require the consultation outcome to be documented, nor any disagreement to be recorded. If the responsible clinician consults someone and then disregards their view—as we heard earlier, according to the Minister they have precedence—that may be entirely justified, but surely transparency demands the recording of the reasons. Will the Government consider adding a requirement to document consultation, perhaps in the code of practice, to ensure that reasons are given when discharge proceedings are taken against clinical advice?
The clause represents an important step towards improving safety, accountability and multidisciplinary care in discharge planning, but the Opposition believe that to realise its full potential and avoid creating uncertainty or delay, the Government should look again at the clarity of key terms, such as “professionally concerned”; the appropriateness of placing duties on laypeople, such as the nominated person; the practical challenges around consultations when key professionals are not available; and the need for clear documentation requirements to uphold transparency and safeguarding in decision making. I look forward to hearing the Minister address those points.
Stephen Kinnock
The hon. Member for Chester South and Eddisbury asked about differences of opinion. The second professional does not have to agree. The ultimate decision in such cases sits with the responsible clinician, to ensure the clear accountability of decision making.
The hon. Lady also asked about delays. We see consultation with another professional as important to making a more informed decision on whether the patient is ready for discharge under the Act. It is especially important that the second professional involved in discharge decisions is from a discipline different from that of the responsible clinician. That will ensure a broader perspective, particularly when the second professional, such as a nurse, may have had more frequent contact with the patient.
Gregory Stafford
Like the hon. Lady, I see many benefits from the clause. Like many Committee members, I am surprised that the Government intend to vote against it.
As has been mentioned, the clause was inserted in the House of Lords by my noble Friends Earl Howe and Lord Kamall. I think it introduces a very valuable and forward-looking provision—namely, a mandatory debrief session within 30 days of discharge. It introduces a formal mechanism for learning from patient experiences following detention under the Mental Health Act. Although patient feedback mechanisms exist in some services, they are not consistently applied or mandated. The clause ensures that every detained patient has the opportunity to reflect on their care with an independent advocate, and that their feedback contributes to service improvement. It reflects a broader shift in mental health law towards transparency, accountability and the patient voice, and aligns with the recommendations from the 2018 independent review of the Mental Health Act, which the Government have used as an argument in favour of many of the other clauses.
Clause 35 is more than just a procedural addition. It represents a shift in culture towards embedding the patient voice and accountability in the mental health care system. It recognises the importance of empowering individuals after detention, supporting their recovery, and learning from their lived experience to improve future services. Mental health charities and third sector organisations have strongly endorsed the clause, seeing it as a meaningful step towards a more rights-based, transparent approach to care.
Clearly, the clause empowers patients, because it gives them a structured opportunity to share their experiences and influence service provision. It promotes transparency by requiring hospitals to report publicly on what they have learned and how they have responded. It supports quality improvement by encouraging services to reflect on and address systemic issues in the delivery of care. Furthermore, it has independent oversight through the involvement of IMHAs, which helps to ensure that feedback is gathered impartially and respectfully.
The reforms prioritise professional clinical opinion, safeguard children from inappropriate influence during periods of acute vulnerability, and elevate the patient voice in the post-care process. In doing so, they align the Mental Health Act much more closely to modern standards of care, international best practice and evolving public expectations. I believe that the clause is essential to strengthening the Bill and ensuring that our mental health system becomes not only more effective but more compassionate, responsive and just.
Dr Evans
I rise to speak to clause 35, which would insert new section 23A into the Mental Health Act 1983. It was introduced and passed in the Lords, and rightly so. As the hon. Member for Thurrock said, it seems surprising that anyone might want to take it out.
The clause was introduced as a new duty to offer all patients detained under the Act a consultation with an IMHA within 30 days of discharge. The purpose is to review their experience of hospital and learn from that experience through a report shared with hospital managers. Currently, the Mental Health Act makes provisions for access to IMHAs primarily during detention, particularly around decisions concerning treatment and care planning. However, once a patient is discharged, formal advocacy tends to fall away, unless pursued through broader NHS complaints mechanisms. There is no statutory duty to engage with patients post discharge, to understand how they have experienced their care or to systematically learn from those experiences.
In that context, the clause represents a welcome and important step forward. We know from successive reviews from the Care Quality Commission, NHS England and, of course, the independent review of the Mental Health Act, led by Sir Simon Wessely, that patients often feel disempowered during their detention. Many describe experiences of coercion, poor communication or even trauma. Yet those experiences frequently go unheard: lost in the silence that can follow discharge. Clause 35 seeks to change that, creating a pathway for those voices to be heard, and, more importantly, for services to learn from them. I strongly support that principle.
We need to clarify one thing first: the clause says a patient must “be offered” a consultation within 30 days —it is no more formalised than that. It is not a statutory requirement to take part, but purely to offer. That is important when it comes to making sure that reports are made in partnership with the patient. That is positive language, which would help to support the decision making and feedback loop.
In their rebuttals, I appreciate that the Government may ask whether the clause would mean hospital managers marking their own feedback. They might also ask how we would deal with CQC capacity. Those are reasonable questions, but at the heart of the clause, as agreed by the Lords, is the fact that all too often patients’ thoughts after discharge are not fully taken into account.
Gregory Stafford
Surely the fundamental part of the Bill is self-assessment and self-reflection. That does happen in some cases, and certainly in other parts of the healthcare system, but in this area generally does not; when it does happen, it is done in an inconsistent manner. The clause seeks to formalise things and to ensure that there is a benchmark by which service users and patients can feed back to the service they have just come from, to improve services. Does my hon. Friend share my confusion about why the Government would want to take that out?
Dr Evans
My hon. Friend makes a strong point. In clinical practice, we know that reflective learning is important, but that is not mandated. As we have seen from the reports, part of the reason why we do not see improvements is that we do not know about them. The clause gives patients the chance to empower themselves in a statutory, regulated way, which then allows us further transparency on how those issues arise.
Let us not forget that patients with good experiences would also have the chance to feed those back, further helping to support the services and hopefully leading to beacons of best practice up and down the nation so that we could then learn from those. That is the idea behind the clause: making sure that the likes of the regulator would be able to share lessons about not only those who have struggled but those who have done well. Clause 35 really offers a rare opportunity to hardwire the patient voice into the feedback loop of mental health services. That is a principle that I and my Opposition colleagues strongly support.
Stephen Kinnock
Fundamentally, we do not support the clause because it is overkill. It simply puts too much burden on to a system that is already carrying out the tasks that the clause seeks to impose on the system, particularly through the CQC. Given that advocates currently have no role in relation to discharged patients, it is clear that the clause would present a new burden; that has been confirmed through my officials’ engagement with advocates and other stakeholders. One hospital manager said that within their small trust alone, the clause would result in contacting and interviewing more than 1,000 individuals discharged from the Act each year.
Dr Evans
The Minister says that advocates had no role in discharge, but they do when advising patients about their rights—that is fundamentally what they do. At the point of discharge, they enable patients to know what their rights are. I take his point about capacity issues. If the Government want to take the clause away, how will they hardwire patients’ feedback into the heart of the Bill?
Stephen Kinnock
The CQC visits and interviews thousands of detained patients each year under its statutory duty to monitor the use of the Mental Health Act. Those visits can lead to the CQC requesting improvements from service providers. The CQC publishes annual reports highlighting key findings and themes from those visits.
Trust boards are responsible for collecting and acting on service user feedback to improve services. Under the NHS contract, the patient and carer race equality framework requires trusts to have clear and visible systems in place for gathering and responding to feedback from patients and carers. What is more, Healthwatch England and its local branches also play a key role in representing the views of health and social care users. I do not really know what more the system could do. The clause simply over-embroiders and over-complicates; when that happens, we usually end up with vast numbers of unintended consequences.
We appreciate that concerns have been raised around the CQC’s role in collecting in-patients’ views. As I said, we would prefer to work with stakeholders to understand those concerns and improve the feedback mechanisms that we have, rather than reinvent the wheel and create something new. We recognise that, although there are multiple aims to the clause, the primary one is to provide a space for people to heal from their experiences of being detained. We are strongly of the view that inviting the individual to share their experiences as part of their advance choice document or care plan—
Dr Evans
I rise to address clauses 36 to 40, which focus on patients involved in criminal proceedings or serving custodial sentences, and how we better align their care and liberty and the protection of the public. These clauses engage serious and sensitive issues—individual liberty, the management of risk and the functioning of the justice and health systems in tandem.
I turn first to clause 36. Under the current Mental Health Act, a restricted patient—typically someone who has been detained under a hospital order with restrictions due to the risk they pose—can conditionally be discharged under section 42 by the Secretary of State for Justice or under section 73 by the tribunal. Conditions can be placed on their discharge, but they cannot amount to deprivation of liberty. This is key. If conditions require constant supervision or control, such as being escorted at all times, then the patient cannot be discharged at all, even if they no longer need in-patient treatment. This was confirmed in the Supreme Court case, MM v. Secretary of State for Justice, in 2018.
Essentially, at the heart of the clause is a group of individuals who have been detained in a hospital under a restricted hospital order. In other words, they are people who have committed serious offences but were found to be suffering from mental disorders at the time. These individuals are not sent to prison; instead, they are detained in secure hospitals under the Mental Health Act. In some cases, clinicians and tribunals decide that someone can be discharged from hospital, but only if they comply with very strict conditions. These can include requirements such as living in a particular place with 24-hour supervision, not leaving without permission, being monitored at all times and other limits that can seriously restrict their liberty.
The issue arose in the case MM v. WL, in which a patient with capacity had consented to highly restrictive discharge conditions involving 24-hour supervision. The court found that the discharge under such conditions could not lawfully take place under the Mental Health Act, even with the patient’s consent, because it amounted to deprivation of liberty, and it was not lawful to call it a “conditional discharge”.
The law as it stands does not provide for that, which is where this clause comes in. Clause 36 seeks to address the impasse by amending sections 42 and 73 of the Act. It allows both the Secretary of State and the tribunal to impose deprivation of liberty conditions upon discharge only where they are necessary to protect others from serious harm, and where conditional discharge is no less beneficial to the patient than continued hospital detention.
I also welcome the intent of the clause: to introduce the principle of least restriction, ensuring that patients are not kept in hospital simply because the law offers no safe option. Paragraph 281 of the explanatory notes states:
“This power supports the principle of least restriction by allowing patients to be discharged from hospital and treated in the community, where otherwise this might have been prevented.”
However, I would like to raise several probing questions for the Minister. Do we know how many patients are currently affected by the MM judgment and held in hospital longer than clinically necessary? How will patients be supported to challenge these conditions, particularly if they have capacity and disagree with the restrictions? Equally, if we flip it and argue for more restrictions, what if there are concerns or disagreements from the services, clinicians or families? How will they be able to challenge the decision in reverse?
I am pleased that my hon. Friend the Member for Solihull West and Shirley is here, as I am not legal expert, but when I was prepping for this, I also noted the retrospective effect of clause 36(5), which allows certain conditions to be applied to those already detained or conditionally discharged when the clause comes into force. The retrospective effect of clause 36 is noted specifically in subsection (5) and reinforced in the explanatory notes. Subsection (5) states:
“The amendments made by this section apply in relation to any person who is a restricted patient within the meaning given by subsection (1) of section 79 of the Mental Health Act 1983, or is treated as a restricted patient as a result of that subsection, whether the person became such a patient (or treated as such a patient) before or after the coming into force of this section.”
This is a clear signal of retrospective application. I believe, in legal terms, this has the effect of changing legislation to make a provision apply as if it has always been in law in the past, not just from the date of commencement. What does this mean? This clause effectively retroactively legalises conditional discharges that include deprivation of liberty before the Bill becomes law, even though under current law, following the MM judgment, that was not permissible.
The explanatory notes to the Bill make this point more directly. For example, paragraph 284 on page 53 states:
“Clause 36 subsection (5) allows the new measures to operate retrospectively by providing that deprivation of liberty conditions can be imposed on restricted patients who are already detained, or who are conditionally discharged, at the time the provisions come into force.”
Again, I am no lawyer, but this makes it clear that the Government are intent on validating past decisions, particularly those made before that are contrary to the MM judgment, which held that the Mental Health Act did not permit deprivation of liberty as part of the conditional discharge. Can the Minister confirm that article 5 of the ECHR safeguards has been fully considered in that respect? On page 72 of the explanatory notes, paragraph 394 says that the right hon. Member for Ilford North (Wes Streeting) believes that the Bill is compatible with the ECHR. To my surprise, when I was working on this at the weekend, I noticed that it says, “in her view”—a small drafting error that highlights my hours and hours of prep for this.
On a serious note, the real-world effect of clause 36(5) is to retroactively legalise the use of conditional discharges that involve deprivation of liberty even though, under current law as interpreted by the courts, such decisions were unlawful at the time that they were made. Why does that matter? The retrospective provision protects public authorities, particularly the Secretary of State for Justice, and mental health professionals from legal liability for decisions made before, or in disregard of, the MM judgment. It shields decisions that may have breached a patient’s rights, particularly their right to liberty under article 5 of the ECHR, by making those actions lawful after the fact.
Anna Dixon
Does the hon. Gentleman agree that one of the challenges of that court ruling, which will stand unless the Bill amends the law, is that there will be people detained for longer than is appropriate because a conditional discharge is not possible under the law as it is currently interpreted? The whole Bill is about the principle of least restriction. Does he not agree that we need to make this change to fit with that principle?
Dr Evans
I agree on that, and we will support the clause. But, as the hon. Member rightly pointed out earlier, we need interoperability between the moving parts to make sure that they all align with the provision in the clause. She is absolutely right: this measure is in the Bill because the patient in the MM case had capacity and had agreed to being discharged with deprivation of liberty impositions, and that was found to be unlawful because of a parallel Act. What I am worried about, and the point that I am trying to make, is that there are so many moving parts in these Acts that we could be in danger of complicating the situation further.
Clause 36 seeks to address the uncertainty by legislating for a new power to impose deprivation conditions as part of a conditional discharge, as the hon. Member rightly pointed out. However, in doing so, the clause effectively runs parallel to, and perhaps even conflicts with, the as yet un-implemented LPS framework. The Government introduced the LPS framework through the Mental Capacity (Amendment) Act 2019. It was intended to be more flexible and responsive than DoLS. But given that the LPS framework has not been commenced, and that there is no clear timetable for implementation—the Minister seemed to suggest that he was unsure whether he will implement them, even though the 2019 Act was passed by Parliament—are we legislating for an entirely separate deprivation of liberty route under the Mental Health Act, and potentially bypassing or duplicating existing safeguards under the Mental Capacity Act?
It all comes back to the point made by my hon. Friend the Member for Solihull West and Shirley about good record keeping and legislative housekeeping. I ask the Minister how the new conditional discharge power will interact with either the DoLS or the liberty protection safeguards—if they are eventually implemented. Are they simply a subsection of the deprivation of liberty conditions, and therefore would not matter? Can the Minister foresee a time where a patient could be subject to both the new powers and the LPS, and if so, who is the decision maker and where do the appeals rightly lie? Should we not wait for the full implementation of the LPS before layering further deprivations in place? That is an open and rhetorical question, but one that vexes me when we are discussing this Bill in detail. There is a real risk here of fragmenting the legal landscape, leading to confusion for clinicians, patients and carers.
Clause 37, which is about conditions relating to the transfers of prisoners and others to hospital, addresses a barrier to timely transfers from prison to hospital. At present, under the case R (ASK) v. Secretary of State for the Home Department of 2019, a transfer from prison under section 47 or 48 of the Mental Health Act cannot be authorised unless a specific hospital bed has already been identified. While well intentioned, that threshold has arguably had a negative effect in deterring referrals and delaying access to treatment.
Clause 37 rightly lowers that threshold. It amends section 47 and 48 of the Act so that a hospital place need not be available at the point of referral. Instead, the clinical decision about suitability for hospital can proceed earlier, allowing for better planning and quicker transfers. That seems a pragmatic response to a bureaucratic bottleneck, but how will this amendment be implemented in practice to ensure that it does not create the false expectation of imminent transfer? Will there be national guidance issued for uniform application of that new test across the entire prison estate?
Clause 38 deals with transfers from prisons to hospitals, and their timeline. It introduces a new statutory duty for transfers from prison or detention to hospital to be completed within 28 days of initial review for assessment via proposed new sections 47A and 48A. As we have heard, that reflects good existing practice. The NHS England guidance already recommends that transfers should be completed within 28 days. However, clause 38 now gives that statutory force subject to exceptional circumstances, which the Bill carefully defines. For instance, as we have heard, shortages of staff and hospital beds do not qualify unless they are caused by exceptional events such as fires or flooding.
This clause is welcomed as an important safeguard for therapeutic benefit, because delays in transfer can cause serious deterioration. It must, however, be supported by sufficient resources and capacity, on which I have a few questions. What assessment has been made of compliance with the 28 day target, and what proportion of cases currently fall outside of it? Will investment be made to ensure bed availability and staffing so that those statutory duties may be fulfilled? When this was debated in the other place, the Justice Minister said:
“I am pleased to share that this Government have recently established a health and justice strategic advisory group, which will bring together key partners with responsibility for the various parts of the transfer process. This group will be chaired by a national clinical director, who will report regularly to Ministers and be responsible for agreeing a joint work plan to support implementation of the statutory time limit, identifying solutions to common barriers to timely transfers and holding partners to account.”—[Official Report, House of Lords, 31 March 2025; Vol. 845, c. 102.]
That is laudable, so I tabled a written question to find out about the group that Lord Timpson talked about. Fortunately, the answer to my written question came back today. The group have not met and are not meeting until 1 July, so I ask for some clarification around that committee. It seems welcome, and this is a complex area. Given that the Justice Minister raised that issue, who will the group report to—the Ministry of Justice or the Department of Health?
Later in his remarks, Lord Timpson talks about the written ministerial statement coming to Parliament. We have heard the Government say that a couple of times about reporting timescales, but in his speech Lord Timpson talked about reporting to Ministers. What kind of time- scales and frequency can we expect if the group has not even met yet? What reporting will there be to Ministers, either in the Ministry of Justice or the Department of Health, to address some of the issues that we are debating today?
Clause 39 deals with transfer directions for persons detained in youth detention accommodation. It is rightly pointed out that this is a gap in the law. There is no power under section 48 to transfer to hospital a child who has been remanded to a youth detention accommodation by the Crown court, even if they urgently need in-patient care for mental disorders. That really does seem to be an anomaly. Such power exists for magistrates court remands, so clause 39 rightly corrects this, and I support it. Do we know how many children have been affected by that gap since 2012? I ask because if this is to come into law with immediate effect, it will have an immediate resource effect. We of course want to make sure that everyone—particularly young people—is in the right place. The fact that some of them legally are not may well cause another problem for us all.
Finally, I turn to clause 40, which appears to be a technical clarification of schedule 1 of the 1983 Act, confirming that the whole of section 66(2)(d) is disapplied for unrestricted part III patients. It clarifies the right of application to the tribunal, and to me it seems uncontroversial and helpful.
I acknowledge the thoughtful work being proposed in these clauses, and I understand what they are trying to do. They represent a clear attempt to modernise and humanise the way the Mental Health Act applies to some of the most vulnerable and high risk patients in our system, but we must ensure that any new powers, particularly those involving deprivation of liberty and retrospective legislation, are subject to clear safeguards, scrutiny and proper resourcing. I look forward to hearing the Minister’s response to my questions.
Dr Evans
I rise to speak to clause 41 and schedule 3, which introduce the independent mental health advocate system under the Mental Health Act 1983. I recognise the positive intentions behind the reforms. The proposals respond to long-standing concerns about access to advocacy for people receiving mental health treatment, especially for those who are not detained, but are nevertheless vulnerable, and may struggle to understand the challenges within their care.
Currently, IMHA services are guaranteed only to a relatively narrow group—namely, patients detained under the Act, those under community treatment orders or guardianship, and certain patients undergoing serious medical treatments under sections 57 or 58A. As the explanatory notes make clear in paragraph 313, that excludes a substantial number of informal or voluntary patients, many of whom may be experiencing significant distress or coercion, even if they are technically not detained.
The clause expands eligibility to a new category of English qualifying informal patients, bringing England more in line with a system already used in places such as Wales. This welcome and overdue development reflects the principle that the right to advocacy should be grounded not in a legal status alone, but in need and vulnerability. The introduction of the opt-out referral system for detained patients is also a step forward. Concerns have been raised that eligible patients never access IMHA, often because they are unaware, overwhelmed or too unwell for self-referral. Making the referral automatic is likely to increase the uptake and strengthen patient voices in critical decisions about care, treatment and discharge.
Although the direction of travel is right, I want to raise several probing questions in areas of concern, particularly relating to implementation, scope and safe- guarding. On resource and workforce readiness, the Government are significantly expanding both the pool of eligible patients and the responsibility of advocacy providers. That is welcome, but it inevitably raises the question of capacity. Can the Minister confirm whether additional funding will be made available to local authorities, or is it up to the NHS and IMHA providers to ensure the expansion is deliverable? Are the new roles of the IMHAs explicitly addressed in the new workforce plan that he is introducing? What assessment has been done of the number of new IMHAs that will be required to meet the duties, particularly now we are using an opt-out model? Without the workforce and training in place, there is a risk that the rights introduced in the legislation will not be fully realised in practice.
My second point is about capacity, consent and best-interest decisions. I would like to clarify a couple of points on schedule 3. It would appear, as drafted, that IMHA providers will be required to assess whether a patient has the capacity to decide whether to receive advocacy, and if not, whether it is in their best interests to do so. That gives providers a significant and quasi-clinical responsibility.
Proposed new section 130B(2C) states:
“Arrangements under section 130A must require a provider of advocacy services, on becoming aware of an English qualifying compulsory patient for whom they are responsible, to arrange for an independent mental health advocate to visit and interview the patient (if possible) with a view to determining”,
first,
“whether the patient has the capacity or is competent to take a decision about whether to receive help from an independent mental health advocate”;
secondly,
“if the patient does have that capacity or competence, whether the patient wishes to receive such help”;
and thirdly,
“if the patient does not have that capacity or competence, whether it is nonetheless in the patient’s best interests to receive such help (which, if so, is to be provided under the arrangements).”
On the first point about whether the patient has the capacity or is competent to take a decision about receiving help from an IMHA, my understanding is as follows. The role of independent mental health advocates is to support people detained under the Mental Health Act, to understand their rights and to be involved in decisions about their care and treatment. IMHAs do not, I believe, have the legal authority to assess mental capacity. The assessment of mental capacity is typically carried out by a qualified healthcare professional such as a doctor, psychiatrist or specially trained nurse, following guidance under the Mental Capacity Act 2005. IMHAs are there to help patients understand the information about their treatment and their rights, and can support them in expressing their views, but they do not perform capacity assessments. So is this a change in professional scope? Is it an oversight? Is it an update? Or is it simply what is happening in practice, which now has legal backing?
Chris Bloore (Redditch) (Lab)
The hon. Gentleman makes an interesting point, but is not the point of an IMHA to ensure that the patient understands their rights under the previous Act and the Bill? That is how they participate in taking decisions about what is available to the patient. Although they might not be clinically trained, they know the legislation inside out, and that gives power and advocacy to the patient.
Dr Evans
The hon. Gentleman identifies exactly what the point of an IMHA is. The way the Bill is written, the IMHA determines whether a patient has capacity or competence to make a decision. That determining means that they are making the choice, which is quasi-clinical. According to the definition that the hon. Gentleman has just given, that would fall out of the IMHA’s scope, because that would involve the ability to make decisions about capacity.
My concern is whether we have scope creep here. If so, we should be explicit about it—perhaps it is something we want to consider—but the way it is written, IMHAs will make capacity-based decisions about whether a person has the capacity to decide whether they need help. I would argue that that should be done by someone who is qualified as a doctor, a psychiatrist or community psychiatric nurse, as currently happens. That is the clarification that I am looking for from the Government. If I have the wrong end of the stick, I will happily back down, but this area of the Bill needs clarifying.
To that end, and if the Bill is written as I fear, I would welcome it if the Minister can tell us how IMHA providers will be supported to make best interest decisions appropriately, especially in cases involving fluctuating capacity or complex presentations. Will there be clinical oversight or statutory guidance to avoid inconsistency or overreach in these assessments? Although I support the principle of proactively offering advocacy, we must ensure that the decisions made on a person’s behalf are done with the appropriate checks and accountability, and by the right people.
My third point is about the exclusion of emergency section patients. The welcome change in the clause and the schedule expands the pool of support, but we should also pay attention to those who are, by definition, excluded. Paragraph 317 of the explanatory notes make it clear that individuals detained under sections 4, 5, 135 and 136 will not benefit from IMHA support. Those are often people detained in crisis situations, sometimes in police custody, or brought in under emergency powers.
For completeness, will the Minister clarify why that group is being left out, given their heightened vulnerability and the likelihood of distress or disorientation? Are the Government satisfied that patients under these emergency powers are receiving adequate information and support at the most critical moments of intervention? Is there a mechanism to support the nominated person if the patient does not have capacity, so that the nominated person receives the information they need to make a fully informed decision? If the answer is that the duration of detention is too short to justify IMHA involvement, I ask the Minister: how short is too short when a person’s liberty and medical autonomy are in question?
It may be that Government amendments 42 and 43 address some of those points, so I will return to this in a second before moving on to my fourth point. In terms of information sharing and patient autonomy, I welcome the retention of the duty to inform patients, especially informal patients, of their right to advocacy, and for that provision to be given both orally and in writing. However, I note that the responsible person must also—except where the patient requests otherwise—be provided with written information to the nominated person. What safeguards are in place to ensure that that does not inadvertently breach the patient’s privacy, such as in situations involving estranged family members, controlling relationships or very personal health issues, which could be disclosed but are not relevant to mental health? It is essential that the nominated person framework enhances advocacy and support and does not undermine the person’s right to control who knows about their care.
Finally, I would welcome clarity from the Minister about how the uptake and impact of expanding the IMHA system will be monitored. Will there be reporting requirements on providers? If so, will that be through the integrated care boards, or is that part of the CQC? Will patients have the opportunity to feed back on the effectiveness of the support they receive?
Before I turn to the amendments, I reiterate that the Opposition support the principle of strengthening advocacy in mental health services. Clause 41 is an important step towards a more rights-based and person-centred system, but the detail of the implementation is key.
I note that proposed Government amendments 42 and 43 to schedule 3 specifically change the definition of “English qualifying informal patient” and “Welsh qualifying informal patient” to exclude patients detained under any
“legislation or by virtue of a court order”,
rather than limiting exclusion to those detained solely under the Mental Health Act. That important clarification partly improves on one of the problems I mentioned when discussing clause 41.
In simple terms, those amendments try to address the issue of clarity and coverage for patients detained under other laws, and I believe that this is how they do that. Originally, the Bill excluded only patients detained under the Mental Health Act from being classified as informal patients eligible for IMHA services, but some patients might be detained under other laws or court orders, such as criminal justice laws, which the original wording did not cover. The amendments change the definition to exclude anyone detained under any legislation or by a court, not just the Mental Health Act. In practice, this means that patients detained under other laws will not mistakenly be considered informal patients eligible for IMHA services under this part of the Bill.
The proposals close a gap so that the right groups get advocacy services, and there is less confusion for hospitals and advocates about who qualifies. In essence, by broadening and bettering the definition and defining the exclusion, this will ensure that patients detained under other legislation, such as the Criminal Justice Act, or other court-mandated detention powers, are not mistakenly classified as informal patients eligible for IMHA services under those provisions. That reflects a more comprehensive and legally coherent approach to defining eligibility.
This clarity is welcome, as it reduces potential ambiguity in respect of providers. That said, will the Minister comment further on how these changes will interact with existing IMHA provisions or advocacy entitlements for those detained under other legislation? Are there parallel safeguards or advocacy rights for those groups? What guidance will be provided to practitioners and IMHA providers to navigate the complexities of overlapping detention regimes, especially when a patient’s status might shift rapidly between voluntary Mental Health Act detention and court orders? Will this amendment necessitate any further changes in regulations or operational policies to ensure smooth implementation and clarity for patients, families and service providers? Ensuring that no patient falls through the cracks due to definitional nuances is crucial for integrity in our mental health advocacy services.
Finally, Lib Dem amendment 19 would insert after “patient”, in schedule 3, page 91, line 13,
“or English qualifying informal patient under 18”.
As the hon. Member for Hertford and Stortford and Opposition Members rightly pointed out, it is quite hard to see why the Government would not want to put that in place. The explanatory statement says that it aims to extend
“the provision of opt-out advocacy services in England to informal inpatients under 18.”
It seems clear in what it does and is a well-defined amendment to that end. I am keen to understand why the Government do not want to support it. Do they believe that this is currently balanced elsewhere in the system? Are there already provisions elsewhere? If not, why—if it is good for adults and we are strengthening their opportunities—should it not be the same for our children?
I will finish on that point. I would be grateful for answers on the clause, the schedule, the Government amendments and the Lib Dem amendment.
Stephen Kinnock
The hon. Member for Chester South and Eddisbury asked who can make referrals in addition to hospital managers. The list of responsible persons is in proposed new section 130CC, in paragraph 6 of schedule 3. In addition to hospital managers, the responsible local social services authority is also required to notify providers of advocacy services about qualifying patients; whether it is a matter for the hospital or the local authority depends on the patient.
I was asked whether there are enough people to fulfil the tasks of the IMHA. The impact assessment gives our current best estimate of likely workforce and funding requirements and sets out the expected expansion required for each workforce group. We will recruit approximately 330 additional IMHAs.
Stephen Kinnock
As has been discussed, as soon as the Bill gets Royal Assent we will launch an extensive consultation around the code of practice. The code of practice will cover everything from training to recruitment to capacity building, and the plan will be set out in the first annual written ministerial statement, which will take place one year after the Bill receives Royal Assent.
My hon. Friend the Member for Hertford and Stortford asked about children admitted informally. We are introducing a duty on hospital managers to inform informal patients of their right to a mental health advocate. We will set out the importance of independent mental health advocate representation for children and young people in the code of practice. That could include the importance of a proactive approach for hospital managers.
We will also describe in the code the new role for independent mental health advocates in relation to informal patients, including vulnerable in-patient groups, such as children and young people, people from ethnic minority backgrounds and people with a learning disability or autism.
The hon. Member for Farnham and Bordon asked whether we have the money for it. The funding requirements will, I think, be related to our best estimate of likely workforce and funding requirements. If we are going for 330 additional IMHAs, the funding requirements will be defined by that number.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether it will be local authority funding. We are obliged to fund new burdens on local authorities to resource this expansion of the independent mental health advocates. He then asked a blizzard of additional questions; I got lost in the thread of them all. We will go through Hansard and write to him.
Stephen Kinnock
No, I have finished.
Question put and agreed to.
Clause 41 accordingly ordered to stand part of the Bill.
Schedule 3
Independent mental health advocates